Legal Bulletin No. 255

Issued 10 April 2026

Welcome to the two hundred and fifty-fifth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Member Decisions

Brown v Toll Transport Pty Ltd [2026] NSWPICPD 12

Workers compensation; section 352(1) of the Workplace Injury Management and Workers

Compensation Act 1998 (1998 Act considered); Skates v Hills Industries Ltd [2021] NSWCA 142 applied; approach to statutory construction, Military Rehabilitation and Compensation Commission v May [2016] HCA 19, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, Alcan

(NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, Grain Growers Limited v Chief Commissioner of State Revenue (NSW) [2016] NSWCA 359, and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 applied - proper construction of the monetary threshold in section 352(3)(a) and (b) of the 1998 Act considered, Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, Grimson v Integral Energy [2003] NSWWCCPD 29, Hamilton v Sydney Water Corporation [2008] NSWWCCPD 5, Popovic v Liverpool City Council [2017] NSWWCCPD 49, Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33, Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46, Ausgrid v Parasiliti [2020] NSWWCCPD 51, DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30; Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38, and Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53 applied; to be competent, an appeal must affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(3)(b) of the 1998 Act; Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 followed; an appeal must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim in issue in the appeal; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3 followed; quantification or particularisation of claim for purpose of threshold in section 352(3)(a) and (b) of the 1998 Act; may be in the Application to Resolve a Dispute; Fine Meat (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 applied; may be adduced in evidence before Presidential Member on appeal; Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62 applied; is determined by the way a case is run in the Commission; Popovic v Liverpool City Council [2017] NSWWCCPD 49 applied; the meaning of ‘amount’ in section 352(3) of the 1998 Act considered; referable to money; the meaning of ‘compensation’ in section 4 and section 352(3) of the 1998 Act considered; referable to statutory benefits in Part 3 of the Workers Compensation Act 1987 (the 1987 Act); the meaning of ‘at issue’ in section 352(3) of the 1998 Act considered; in dispute or conflict; Emde v State of New South Wales [2025] NSWCA 41 applied; rule 123 of the Personal Injury Commission Rules 2021 (Commission rule) applied; section 352(6) of the 1998 Act regarding fresh or additional evidence; Procedural Direction WC3 considered; Transfield Services (Aust) Pty Ltd v Wicks (No 2) [2012] NSWWCCPD 77, CHEP Australia Limited v Strickland [2013] NSWCA 351, and Hartley v A P & M T Mavin trading as Allan Mavin Carpark Service Station [2025] NSWPICPD 15 applied; meaning of ‘decision’ in section 352(8) of the 1998 Act considered; does not include reasons for decision; section 294 of the 1998 Act; Commission rule 78 applied; Edmund Diab v Salem Naji [2010] NSWWCCPD 33 considered but not followed; Held – the monetary threshold in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied and there is no right of appeal; the application is dismissed.

Decision date: 31 March 2026| Before: Deputy President the Hon. Adam Searle

Warrumbungle Shire Council v Xu [2026] NSWPICPD 13

Workers compensation; psychological injury; causation; misperception; whether

respondent had proven that injury resulted from hostile work environment; whether member applied an incorrect test for perception; Attorney General v K [2010] NSWWCCPD 76 considered and applied; failure to engage with critical argument or give adequate reasons on issue of causation;  Dranichnikov v Minister of Immigration and Multicultural Affairs [2003] HCA 26 considered; rule 78 of the Personal Injury Commission Rules 2021 considered and applied; Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505 considered and applied; Held – the Certificate of Determination dated 30 July 2025 is confirmed.

Decision date: 1 April 2026| Before: Acting Deputy President Sweeney

Motor Accidents non-Presidential Member Decisions

Raad v Nominal Defendant by its agent Allianz Australia Insurance Limited [2026] NSWPIC 173

Motor Accident Injuries Act 2017; miscellaneous claims assessment schedule 2(2); claim for statutory benefits; unidentified alleged at-fault vehicle; claim made on Nominal Defendant; whether “due inquiry and search” established under section 2.30; impact of delay in undertaking due inquiry and search; Held – due inquiry and search established by the claimant; identity of vehicle alleged to be at fault unable to be established.

Decision date: 2 April 2026| Member: Terence O'Riain

AAI Limited t/as AAMI v Hawthorne [2026] NSWPIC 177

Motor Accident Injuries Act 2017; approval of settlement of $75,000 under section 6.23; claimant sustained injury as a result of a motor vehicle accident where he was hit by a car whilst riding a bike; liability admitted by insurer; past and future damages for economic loss awarded; Held – settlement of $75,000 approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 26 March 2026 | Member: Terence Stern OAM

Al-Tawil v Youi Pty Ltd [2026] NSWPIC 178

Motor Accident Injuries Act 2017 (the 2017 Act); miscellaneous claims assessment; whether pest control services are “treatment and care” for the purposes of the 2017 Act; where claimant carried out pest control around his home at least twice a year; post-accident unable to perform those tasks and requires paid services; Insurance Australia Limited t/as NRMA Insurance v Chowdhury considered and applied; Held – when determining whether a particular task or set of related tasks are “everyday tasks” it is appropriate to consider the subjective circumstances of the claimant in question; the pest control tasks performed by the claimant were intended to maintain the habitability and upkeep of his home and fall within the ordinary meaning of “home maintenance”; the claimed services aim to provide assistance to him with those tasks; the services are “attendant care services” and come within the definition of “treatment and care.”

Decision date: 27 March 2026 | Senior Member: Brett Williams

Insurance Australia Limited t/as NRMA Insurance v Mackenzie [2026] NSWPIC 181

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); accident as pedestrian; contributory negligence alleged; liability question was uncertain; claimant sustained physical injuries and psychological condition; period off work; returned to work but with reduced capacity for pre-injury duties; medical evidence supports no deterioration but claimant gave evidence of reduced earning capacity and continuing disability; claimant’s evidence preferred; initial settlement proposal declined and parties negotiated further; claimant expressed herself as having agency to decide on accepting settlement; proposed settlement fair, just and reasonable; Held – proposed settlement approved.

Decision date: 31 March 2026 | Member: Terence O'Riain

AAI Limited t/as GIO v Payne [2026] NSWPIC 183

Motor Accident Injuries Act 2017; settlement approval; damages limited to past and future economic loss; claimant injured after being knocked off his bicycle; suffers ongoing discomfort in his left elbow around the posterior aspect near the olecranon with increased activity such as drilling; employed as an auto electrician; ongoing discomfort using his elbow, weakness in his left upper hip with ongoing back pain; Held – settlement approved under section 6.23(2)(b) in the sum of $200,000; amount within the range of settlement expected if assessed by a Member in the Commission, satisfied the settlement is just, fair and reasonable.

Decision date: 1 April 2026| Member: Elyse White

Workers Compensation non-Presidential Member Decision

Al-Nabulsi v Group Marketing (AUST) Pty Ltd t/as Barberhouse Café & Anor [2026] NSWPIC 179

Workers Compensation Act 1987; claim for lump sum compensation for injuries to the applicant’s lumbar spine, right shoulder, cervical spine and left shoulder pursuant to section 66; lumbar spine and right shoulder injuries accepted; Held – applicant sustained injuries to his cervical spine and left shoulder as a result of the fall in addition to the accepted lumbar spine and right shoulder injuries; matter remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment.

Decision date: 9 April 2026| Member: Fiona Seaton

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as GIO v Gaters [2026] NSWPICMP 216

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; whole person impairment (WPI); lumbar spine injury; right wrist active range of motion findings unchanged; prior clinical findings identifying two signs of radiculopathy; Medical Assessment Guidelines; no documented evidence of symptomatic impairment of the right wrist at the time of the motor accident; no prior details regarding physical examination findings of lumbar spine by treating general practitioner; Held – non-threshold injury; 10% WPI assessed.

Decision date: 23 March 2026| Panel Members: Member Hugh Macken, Dr Les Barnesley, and Dr Sophia Lahz| Injury module: Spine, and Upper Limb

Chau v Allianz Australia Insurance Limited [2026] NSWPICMP 220

Motor Accident Injuries Act 2017; threshold Injury dispute; claimant was the driver with her son in the passenger seat; insured vehicle rear-ended a vehicle on the opposite side of the road; claimant sustained injuries to her back, neck, right leg, both shoulders and chest; claimant was wearing a seatbelt and  she was trapped in her vehicle due to her injuries; Medical Assessor (MA) certified claimant is suffering from accident-related adjustment disorder with mixed anxious and depressed mood which is a threshold injury for the purposes of the Act; MA considered post-traumatic stress disorder (PTSD) as a differential diagnosis but was not satisfied that Criterion A was satisfied; claimant’s review application allowed on basis of MA’s failure to expose the path of reasoning that led to her determination that Criterion A for PTSD was not established; claimant re-examined by both MAs who agreed that all Criteria for diagnosis of PTSD was satisfied; Held – certificate revoked.

Decision date: 26 March 2026| Panel Members: Member Gary Victor Patterson, Dr Alan Doris, and Dr Wayne Mason| Injury module: Mental and behavioural

Khani v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 223

Motor Vehicle Injuries Act 2017; review of certificate and reasons of Medical Assessor (MA) who found the claimant had other specified trauma and stress related disorder as well as a persistent depressive disorder with a whole person impairment assessment of 19%; Review Panel was referred for assessment of post-traumatic stress disorder together with anxiety and disturbed sleep; claimant was injured in a motor vehicle accident, involving a rear end collision when he was travelling as a passenger; claimant struck his head on the B pillar of the car; following examination of the claimant, the Review Panel was satisfied that the difference in its conclusions and assessment to that of the MA and Doctor resulted in the length of time since their assessment and the claimant’s improvement in condition; Review Panel assessed the claimant as having persistent depressive disorder with anxious distress and assessed whole person impairment at 7%; Held – Certificate of the MA was revoked.

Decision date: 27 March 2026| Panel Members: Member Alexander Bolton, Dr Melissa Barrett, and Dr Himanshu Singh| Injury module: Mental and behavioural

Nhayli v AAI Limited t/as AAMI [2026] NSWPICMP 228

Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; whether degree of permanent impairment in respect of psychological injuries is greater than 10%; Medical Assessor found 7% permanent impairment; claimant examined; impact of any pre-existing impairment; consideration of inconsistencies; Held – satisfied that claimant had a pre-existing impairment; Review Panel assessed nil deficit and therefore no apportionment made; Review Panel assessed 7% permanent impairment, which is not greater than 10% caused by the accident; Medical Assessment Certificate revoked due to difference in diagnoses.

Decision date: 31 March 2026| Panel Members: Member Bianca Montgomery-Hribar, Dr Wayne Mason, and Dr Christopher Canaris| Injury module: Mental and behavioural

Transport Accident Commission v Li [2026] NSWPICMP 229

Motor Accident Injuries Act 2017; degree of permanent impairment dispute; claimant was slowing down as he approached a line of traffic stopped at an intersection when it was struck in the rear by the insured vehicle at a relatively slow speed; claimant’s vehicle was shunted into the next vehicle in the line of traffic in front of him; MRI of cervical spine showed disc protrusion at C3/C4 with secondary canal stenosis which is long-standing; Medical Assessor (MA) certified soft tissue injury to cervical and lumbar spine with whole person impairment (WPI) not more than 10%; MA found C3/C4 broad based disc protrusion with severe left and right stenosis, comprising the exiting C4 nerve root bilaterally but was not caused by the subject accident; neither party challenged those findings; within a few months of that assessment; claimant had a sudden unexplained relapse, leading to emergency C3/C4 anterior cervical discectomy fusion surgery; claimant granted further assessment on that basis; second MA found the following injury caused by the motor accident gave rise to a WPI of 35%; aggravation of pre-existing degenerative cervical spine disease with broad based disc protrusion at C3/C4 causing severe bilateral stenosis compromising C4 nerve roots bilaterally and causing cervical myelopathy necessitating urgent surgical intervention; MA relied upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th Ed, 3/110 Table 73; DRE Category V; Motor Accidents Authority Guidelines Table 6.7 page 103; insurer’s review application was allowed by the President’s delegate on the basis of the MA’s determination of causation; claimant examined by third MA on behalf of the Review Panel; Review Panel not convinced that the sudden relapse leading to surgery was caused by the accident; Allianz v Choi considered; Review Panel found that the only cervical spine injury caused by the accident is a soft tissue injury, and musculoligamentous strain injury; 0% WPI assessed; Held – certificate revoked.

Decision date: 31 March 2026| Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Tai-Tak Wan| Injury module: Spine, and Upper Limb

Karmacharya v Insurance Australia Group Limited t/as NRMA Insurance [2026] NSWPICMP 230

Motor Accident Injuries Act 2017; review of certificate and reasons of Medical Assessor (MA) dated 22 July 2024 who determined the claimant had a diagnosis of post-traumatic stress disorder with a 6% whole person impairment (WPI); injuries referred to the Review Panel being psychological injuries- depression, shock and anxiety; claimant injured in a car versus motorbike accident with serious physical injuries requiring five days initial admission in hospital and subsequent surgeries; claimant had been a student prior to the accident but post-accident has not been able to continue these studies due to both his physical and psychiatric injuries; claimant’s circle of friends diminished post-accident; Review Panel diagnosed the claimant as having a post-traumatic stress disorder and a persistent depressive disorder and assessed a WPI of 15%; Held – certificate of original MA revoked.

Decision date: 31 March 2026| Panel Members: Member Alexander Bolton, Dr Wayne Mason, and Dr Steven Yeates| Injury module: Mental and behavioural

Lam v QBE Insurance (Australia) Limited [2026] NSWPICMP 231

Motor Accident Injuries Act 2017; review of medical assessment of Medical Assessor; whether the claimant suffered injuries caused by the accident that are threshold; dispute as to whether treatment relates to the injury caused by the accident and is reasonable and necessary; whether rotator cuff tear was caused or contributed to by the accident; whether associated treatment including surgery related and reasonable and necessary; radiological evidence of pre-existing tear, partial; subsequent radiology after accident reveals full thickness tear; Review Panel found that the accident could give rise to the worsening of the tear, and on balance did worsen the tear; non-threshold injury found; surgery, physiotherapy, and domestic assistance relates to the injury caused by the accident; surgery and physiotherapy are reasonable and necessary; domestic assistance found not to be reasonable and necessary; Held – original certificate revoked; new certificate issued.

Decision date: 31 March 2026| Panel Members: Member Elizabeth Medland, Dr Shane Maloney, and Dr Drew Dixon | Injury module: Spine, and Upper Limb; Treatment Type: Surgery, Physiotherapy treatment, and Domestic Assistance

Allianz Australia Insurance Limited v Kim [2026] NSWPICMP 232

Motor Accident Injuries Act 2017; review of medical assessment; assessment of threshold injury; pre-accident shoulder pain; pain in neck, left shoulder, lower back and left knee; pain in right knee and right shoulder; exacerbation of pre-existing rotator cuff tear; multiple soft tissue injuries; accident did not cause any fibrocartilage disc tears; left shoulder deterioration in range of motion is matched by reduction in the right shoulder; clinical presentation in the left shoulder is not supported by radiological findings which show a stable pre-existing partial tear; injuries sustained; determined to be a threshold injury; Held – certificate revoked; new certificate issued.

Decision date: 1 April 2026| Panel Members: Member Hugh Macken, Dr David Gorman, and Dr Mohammad Assem| Injury module: Spine, Upper Limb, and Lower Limb

Insurance Australia Limited t/as NRMA v Bousaid [2026] NSWPICMP 233

Motor Accident Injuries Act 2017; degree of permanent impairment dispute; claimant was wearing a seatbelt and travelling in a 70 km/h per hour zone; claimant observed two vehicles travelling side by side in the opposite direction; oncoming vehicle in lane two clipped the oncoming vehicle in lane three which then crossed the median strip and collided with the front of the claimant’s vehicle; claimant reported immediate pain in her neck and lower back; claimant was taken to hospital where she reported symptoms of pain in her chest; diagnostic investigations showed no acute injuries; claimant was observed overnight and discharged home without any procedures being performed; claimant reports severe worsening of her mental health following the accident; claimant had been experiencing nightmares and flashbacks of the accident; claimant was not able to drive for a long time; claimant reports that her mood has been a mixture of anger, guilt, anxiety and shame; Held –  certificate revoked.

Decision date: 1 April 2026| Panel Members: Member Gary Victor Patterson, Dr Paul Friend, and Dr Surabhi Verma| Injury module: Mental and behavioural

Chidiac v Allianz Australia Insurance Limited [2026] NSWPICMP 234

Motor Accident Injuries Act 2017; medical assessment of threshold injury; claimant’s application for review under section 7.26; claimant said he injured lower back and right shoulder in accident; insurer alleged causation due to pre-existing lower back and shoulder problems; claimant re-examined by two Medical Assessors; Held –  claimant could have and did injure their lower back and right shoulder; lower back injury was soft tissue and threshold; consideration of clause 5.8(b), table 6.7, and the medico-legal expert’s finding of “positive sciatic nerve root tension sign”; claimant did not have and had not had two or more signs of radiculopathy; right shoulder injury was the partial rupture of an already torn supraspinatus tendon; claimant had radiology after the accident showing complete tear; claimant had attended health care practitioners before accident with signs of rotator cuff tears; no radiology before the accident; Review Panel satisfied claimant had partial tear before the accident and more probable than not that this was further torn in the accident; Held –  original certificate revoked.

Decision date: 1 April 2026 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Les Barnsley| Injury module: Spine, and Upper Limb

AAI Limited t/as GIO v Walkom [2026] NSWPICMP 235

Motor Accident Injuries Act 2017; review of medical assessment; assessment of whole person  impairment (WPI) and treatment; prior right shoulder injury; prior history of low back pain; prior right total knee replacement; bilateral reduction in shoulder movements; no ligamentous or tendinous injury to the left shoulder in the motor accident; WPI assessed at 8%; proposed treatment not causally related to the subject accident nor reasonable and necessary; allowance for past care relates to injuries arising from the accident, and are considered reasonable and necessary; Held – original certificate revoked; new certificate issued.

Decision date: 1 April 2026| Panel Members: Member Hugh Macken, Dr Margaret Gibson, and Dr Michael Couch| Injury module: Spine, and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Cunningham v Kurri Kurri Community Services Ltd [2026] NSWPICMP 224

Workplace Injury Management and Workers Compensation Act 1998; assessment of whole person impairment of psychological injury; appeal by worker on grounds of the assessment being made on the basis of incorrect criteria and demonstrable error; Appeal Panel satisfied that the Medical Assessor erred in making a deduction pursuant to section 323 in relation to a pre-existing condition by way a deduction based on 3% for effects of treatment; Held –  MAC revoked.

Decision date: 30 March 2026| Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Ash Takyar | Injury module: Psychological/Psychiatric

Archer v State of New South Wales (Western NSW Local Health District) [2026] NSWPICMP 225

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of two of the six assessments under the psychiatric impairment rating scale categories, namely self-care and personal hygiene, and travel; the challenged assessment in respect of self-care and personal hygiene was revoked on appeal; Held –  Medical Assessment Certificate revoked.

Decision date: 30 March 2026| Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews| Injury module: Psychological/Psychiatric

McNeill v State of New South Wales (Fire & Rescue NSW) [2026] NSWPICMP 226

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of one of the six assessments under the psychiatric impairment rating scale categories, namely social and recreational activities; the challenged assessment was confirmed on appeal; Held –  Medical Assessment Certificate confirmed.

Decision date: 30 March 2026| Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews| Injury module: Psychological/Psychiatric

Motor Accidents Merit Review Decisions

Ghafili v AAI Limited t/as GIO [2026] NSWPICMR 11

Motor Accident Injuries Act 2017; dispute under Schedule 1, clause 2; whether the claimant is an earner; inconsistencies in evidence; absence of independent evidence; evidence of employer unreliable; absence of contemporaneous documents; credit in issue; onus of proof; whether evidence reliable, cogent and truthful; Held – the reviewable decision is affirmed.

Decision date: 23 March 2026| Merit Reviewer: Katherine Ruschen

Koroma v Insurance Australia Limited t/as NRMA  [2026] NSWPICMR 13

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about calculation of pre-accident weekly earnings (PAWE); whether earning continuously; clause 4(2)(a); clause 4(2)(b) and 4(3); whether significant change in earning circumstances; whether change resulted in earning more; clause 4(1); Held –  the reviewable decision is set aside.

Decision date: 25 March 2026| Merit Reviewer: Katherine Ruschen

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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